United States v. Swiss American Bank, Ltd.

§ until 405(g), sentence six of which states the district court retains “may any reviewing proceedings complete a at time order the remand are additional evidence to taken before the be findings the Commissioner files modified only Security, Commissioner of Social but decision, of facts and a modified 42 U.S.C. upon showing that there is new evidence § 405(g). prevailing If Freeman is then a good material and that there is which is party, may any the court consider properly incorporate cause for the failure to such filed for fees under the application Equal prior pro- evidence into the record in a Schaefer, Access to Justice Act. Shalala v. § ceeding.” 405(g). Evidence U.S.C. 292, 299-300, 509 U.S. applicant working during was (1993). L.Ed.2d 239 period disability unquestion- claimed is payment The order for of benefits is relevant, ably step the first of the five- vacated and the case is remanded with step disability process determination asks instructions to remand to the Commission- applicant engaged

whether the in sub- proceedings er for further not inconsistent gainful activity. work stantial C.F.R. opinion. with this 404.1520, (2001). §§ 416.920 As the Com- only recently this missioner has obtained and could

information not have obtained

earlier, “good has she satisfied the cause” case, In

requirement of sentence six.2 this

there is no risk of to unfairness Freeman

by allowing proceedings.3 further America, UNITED STATES normally note that We sentence Plaintiff, Appellant, four post-judgment remands are remands (in that the reviewing court has entered a

judgment “affirming, modifying, or revers BANK, LTD., SWISS AMERICAN Swiss Commissioner,” ing the decision of the Bank, American National and Inter- 405(g)), § U.S.C. and sentence six re Bank, Geneva, Defendants, Maritime (entered pre-judgment mands are remands Appellees. reviewing when the court has not ruled on No. 00-2502. the correctness of the Commissioner’s de cision, good remanding but cause exists for Appeals, United States Court of evidentiary proceedings). further First Circuit. Sec’y Faucher v. Health Human & Servs., (6th Cir.1994). Heard June 2001. could order a pro We remand for further Decided Dec. 2001. ceedings under either sentence. order if preserve rights Freeman’s he is ulti mately prevailing party, we will treat remand,

this as a sentence six under which Indeed, responsibility 2. it was Freeman’s Commissioner would now be entitled to a notify working he hearing Commissioner that was new on whether Freeman’s benefits application pending. while his prospectively C.F.R. retrospectively should be or ter 404.452, 416.704(a)(4), 416.708(b) (2001). §§ minated or reduced due to his and 2000 III, work activities. 20 C.F.R. ch. Moreover, 404.401a, 404.502, 404.1590, §§ granted even if the ALJ had bene- 416.1100 original hearing, fits Freeman (2001). Wilson,

Howard with whom Alan H. Scheiner, Rosenman LLP, & Colin Michael B. Keating, Sarah Cooleybeck, Foley, and Hoag & brief, Eliot LLP were on appellees Bank, Swiss American Ltd. and Swiss American National Bank. McDermott, Wm. Shaw with whom Freidel, Irene C. Bierman, Aimee Kirkpatrick & Lockhart LLP were on brief, appellee Bank, Inter-Maritime Geneva.

Before LIPEZ, TORRUELLA and Judges, TAURO,* Circuit District Judge.

TORRUELLA, Circuit Judge. The United States attempt- ed to recover million drug proceeds $7 that a Massachusetts resident deposited in an Antiguan bank and then forfeited to the United part States as plea agreement. After the bank did not funds, turn over the the United States filed a in claim the Mas- sachusetts District for conversion, Court unjust enrichment, and breach of contract against Swiss American Bank and al- leged ego, alter Bank of New York-Inter- time, Maritime Bank. For the second the government appeals the court’s dismissal for personal jurisdiction case lack of and its refusal to allow jurisdictional dis- covery. After completing plenary re- view, we agree with the district court that the failed prima to make a facie showing specific of general juris- or diction, and conclude that the district court acted within its discretion to deny gov- the ernment discovery. We Levine, Mia Trial Attorney, United therefore affirm judgment. Justice, Department States of with whom I. McDowell, Gerald E. Chief Trial Attorney, Taylor, Karen Trial Attorney, Donald K. Between 1985 and John E. Fitz- Stern, United Attorney, States and Rich- gerald, Massachusetts, a resident of depos- Hoffman, ard L. Assistant United States ited about million $7 Swiss American Attorney, brief, were on appellant. for Bank and Swiss American National Bank * Massachusetts, Of sitting the District of by designation. forfei- your action for the event of SAB), [I]n under organized

(collectively both successful, the banks being have ture and lo- Antigua and Barbuda laws of of instructed the Government been deposited Fitzgerald cated there. to freeze all of the and Barbuda Antigua in the name of held money in accounts Petition, until ... in your issue assets When he made corporations.1 shell owners have been the ultimate beneficial wholly owned sub- deposits, SAB was satis- to the Government’s Compa- ascertained sidiary Holding American Swiss a directive faction. This is which corporation, a Panamanian ny,2 pain having have to honor on banks by Bank of New wholly owned turn was problem is a (IMB), licences revoked and in- their Bank an York-Inter-Maritime address on may well you have law and organized under Swiss stitution your litiga- the successful conclusion based Geneva. tion. guilty to several pled In Fitzgerald 4, 1994, en- the district court May racketeering and On conspiracy

counts of money decreeing a final order admit- tered money laundering. He attempted forfeited account to be Fitzgerald’s SAB deposited at SAB were that the funds ted a November States. In laundered United that he had drug proceeds letter, of Anti- General Solicitor organized with through corporations shell States gua then informed United Herrington, F. help of Peter account Fitzgerald’s had of bank records manager. During some general SAB’s 1995 hurri- destroyed September in a his been Fitzgerald deposited the time that had been frozen cane SAB, funds represented funds money at his Novem- Antiguan government. On depos- by the of the bank’s total about one-third 20, 1995, learned the United States Fitz- ber plea agreement, part its. As of his lawyer Antigua SAB in his from a money gerald agreed to forfeit longer “no available” because funds were govern- accounts the United States SAB Antiguan they to the had been transferred ment. pay and used to off debts. It District the U.S. November that in either December undisputed for the District of Massachusetts Court January after the final order of or preliminary a order of forfeiture entered entered, transferred forfeiture was $5 SAB Beginning deposited the funds. regarding Fitzgerald’s from account the million amade January the United States kept the re- government and Antiguan Antiguan govern- to the requests series of million, pay maining apparently off $2 recovering seeking ment assistance by Fitzgerald. taken out SAB loans Meanwhile, impend- notice of money. agree Antiguan government Anti- published forfeiture ing Antiguan funds were disbursed with No and the Boston guan Gazette Globe. approval. However, filed. competing claims were 23, 1997, the United 28, 1994, On December during period, the filing March complaint a federal district States filed district court sent a to the SAB letter suing SAB and in Massachusetts stated: sake, collectively them as "Fitz- we refer to According government, accounts 1. to the gerald's accounts.” Invest- were held in name of Rosebud Ltd., Investments, ments, Ltd., Rose White government Swiss Amer- 2. failed to serve The Investments, Investments, Ltd., J & B Handle result, Holding Company. As a not ican Ltd., Bank, clarity's Ltd. For and Guardian party litigation. to this conversion, unjust enrichment, discovery. 1MB for The district court held a hear- September 30, ing and breach of contract. On on these motions on March 2000. gov The court's review included affidavits and the district court dismissed the personal juris par- ernment's case for lack of related evidence submitted both diction. See United States v. Swiss Am. ties, including report govern- from the Bank, Ltd., F.Supp.2d (D.Mass. investigator, allega- ment's as well as the 1998) (Swiss I). pleadings. The court ruled that the tions contained in the At the government hearing, granted failed to show that the defen the court IMB's motion beyond jurisdictional adequately plead dants were reach to dismiss for failure to any general jurisdiction, ego liability personal state court of alter Wandfor lack of required by jurisdiction. Federal Rule of Civil Pro See United States v. Swiss 4(k)(2). Bank, Ltd., F.Supp.2d 217, cedure Id. at 136. The court also Am. government's request (D.Mass.2000) (Swiss III). Following denied the for dis covery plead hearing, opinion because of its failure to this the court issued a written personal jurisdiction. dismissing against element of Id. the case SAB for lack of personal jurisdiction. Ap- government appealed, See id. at 225. and we re- plying burden-shifting versed the district court's dismissal for framework set II, jurisdiction 4(k)(2). forth in Swiss the court found that the lack of under Rule Bank, negation See United States v. Swiss Am. defendants had conceded the re- quirement. Ltd., (1st Cir.1999) (Swiss II). Id. at 220. It then turned to 191 F.3d 30 4(k)(2): required the third element under Rule We said that three elements are jurisdiction personal jurisdiction whether would violate constitu- for the exercise of 4(k)(2): (1) plaintiffs process under Rule claim tional due because the defendants law; (2) adequate must arise under federal the de- lacked contacts with the United beyond States as a whole and because the exercise fendant must be any general juris- reach of state court of would be unreasonable. Id. (the "negation requirement"); diction and The court found that (3) failed to show sufficient contacts under the exercise of must not rights general specific theory per- violate the defendant's under the either a or Constitution or federal law. See id. at 38- Finding sonal Id. at 222-25. government's jurisdictional 39. We found that the had show- test, ing satisfied the first element of this was "bootless" and did not amount to a apply claim, directed the district court to a new cOlorable the court also denied the burden-shifting negation request jurisdictional discovery. framework to the Id. at requirement. See id. at 41. We also di- govern- rected the court to reconsider the II. request discovery light ment's for in of the negation requirement analysis new that we It is basic law that a court must Finally, set forth. See id. at 46. we de- personal jurisdiction parties have over the argument clined to rule on IMB's case, is, power to hear a "that the to against case it should be dismissed on the require parties obey to its decrees." merits, saying that this matter should II, Swiss 191 F.3d at 35. At the same jurisdictional await resolution of the issue. time, "[d]etermining personal jurisdiction See id. at 46-47. always has been more an art than a sci remand, Hockey League, On SAB and 1MB renewed ence." Donatelli v. Nat'l (1st Cir.1990). dismiss, govern- 893 F.2d 468 n. 7 As their motions to and the subsequently request said, jurisdictional ment renewed its Justice Marshall de- have sufficient contacts with parties few answers “is one in which termination and white. The a whole. as be written black the United States will among them even are dominant and greys may au “A exercise district (quoting are innumerable.” Id. the shades by virtue either thority over a defendant Ct., U.S. v.Super. Kulko jurisdiction.” specific Mass. general or (internal (1978)) 1690, L.Ed.2d 132 Andover, Inc. v. Am. Bar Law at Sch. of omitted). and citations marks quotation Cir.1998). (1st Ass’n, 142 F.3d jurisdiction inquiry personal is a jurisdiction exists when there “Specific one dif like this question cases in federal plaintiffs a between demonstrable nexus diversity inquiry cases. from the fers ac a defendant’s forum-based claims and Here, § “the constitu See 28 U.S.C. tivities.” Id. “General exists juris personal of the court’s tional limits directly is not founded litigation when the Fourteenth by ... not are fixed diction contacts, forum-based the defendant’s Process by the Due Amendment but has en the defendant nevertheless but Fifth United Amendment.” Clause systematic activi gaged in continuous Elec., v. 163 & Workers Radio Mach. suit, forum to the ty, unrelated 1080, 1085 Corp., 960 F.2d St. Pleasant I, 960 F.2d at 1088. Pleasant St. state.” (Pleasant I). Cir.1992) (1st This dis St. argues that it has Here the the Fifth under tinction matters because specific general for both met tests Amendment, only show plaintiff a need alternative, gov In the adequate contacts the defendant has that if its ernment contends whole, rather as a with the United States short, showing the district court should fell id. At particular a state. See than with discovery of allowed it to take limited have time, however, must same as a with the United SAB’s contacts States a process its service of ground still id. or civil rule. See whole. federal statute case, asserted basis this a district court rules on When a Rule of Civil jurisdiction is Federal jur personal for lack of motion dismiss 4(k)(2).3 The Rule functions Procedure evidentiary an holding without isdiction long-arm statute” species a of federal “as case, “prima facie” hearing, as this loophole” that existed “elos[ing] [the] its determination. See governs standard single- foreign “lacked when defendants & Mach. Workers Elec. United Radio bring them contacts sufficient state Corp., St. Am. v. 163 Pleasant long- given state’s the reach a within Cir.1993) (Pleasant II); St. Boit statute,” enough contacts but “had arm Prods., Inc., Gar-Tec a whole to make United States (1st Cir.1992). standard, it this “Under them in a United personal over to demonstrate the exis plaintiffs burden II, 191 court constitutional.” Swiss States required satisfy both every tence of fact long-arm stat F.3d at 40. Whereas state and the Due long-arm the forum’s statute parties require showing

utes Process Clause of Constitution.” with the forum sufficient contacts have (internal II, at 44 4(k)(2) state, showing that Pleasant St. requires Rule 1993, jurisdiction per- personal over the provides: establish the Rule 3. Enacted in subject to any who is not jurisdiction son of defendant of is consistent If the exercise general jur- and laws of the Unit- with the of Constitution of the courts States, filing serving summons or a ed a any isdiction of state. effective, with re- of service is also waiver 4(k)(2). Fed.R.Civ.P. law, arising spect under federal to claims omitted). quotation marks prima “The fa- general jurisdiction constitutional test showing cie must be upon based evidence is considerably stringent more than that specific of facts set forth in the record.” applied to specific jurisdiction questions.” Id. To requirement, meet this plaintiff Co., Noonan v. 85, Winston beyond must “go the pleadings and make (1st Cir.1998) (internal quotation marks (internal proof.” affirmative Id. quotation omitted). omitted). However, marks in evaluating prima

whether the facie standard has been We start with the defendant’s con satisfied, “the district court acting is not tacts with the forum because “[i]f same factfinder; rather, a it accepts properly do not exist in sufficient abundance ... supported proffers of evidence a plain the inquiry Donatelli, ends.” at F.2d tiff as true and makes its ruling as a 465. The district court found that matter of law.” Id. When “the district contacts discovered by the government’s employs prima facie standard investigator, and taken as true for pur ... appellate review is de novo.” Foster- poses of the dismiss, motion to were as Miller, Can., Inc. v. Babcock & Wilcox (1) follows: in 1992 and 1993 SAB placed 138, 147 (1st Cir.1995). F.3d twelve in advertisements American Way magazine, publication a of American Air A. General Jurisdiction lines; (2) during unspecified an period, The government argues that it SAB subscribed International, to Visa a has demonstrated sufficient contacts to California credit company, card and en make prima a facie showing of general tered into a licensing agreement with In evaluating whether the ex International, MasterCard a New York ercise personal jurisdiction is warrant (3) company; 1990, SAB was an appel ed, courts concentrate on the “quality and lant in a court; (4) lawsuit in a Florida quantity contacts between the potential 1998, information about posted SAB was defendant and the forum.” Phillips Exe sites;4 (5) three 1996, internet SAB ter Fund, Inc., Acad. Howard Phillips entered into a contract with Sys Arkansas 284, Cir.1999). The as tems, Inc., an company, Arkansas for the sertion of general jurisdiction comports (6) provision support services; ATM with process due when two criteria are 1985, sometime before SAB entered into First, met. there must be “continuous and joint venture with Home Savings State systematic general business contacts” be (7) Ohio; 1996, Bank of SAB loaned tween foreign and defendant the forum. $350,000 to a Colorado company that runs Hel icopteros Nacionales de Colom bia, (8) an internet Hall, service called Sportspiks; S.A. v. U.S. (1984). SAB “may have” had Second, 80 L.Ed.2d 404 business relations with Nhancement must show that Technologies, exercise Inc., (9) would California company; be reasonable. See SAB Do “had natelli, correspondent 893 F.2d at 465 (discussing banking relationships the five “gestalt factors” used banks; accounts” with four determine funda New York (10) mental fairness of exercising jurisdiction). SAB had a relationship business matter, As a threshold Fitzgerald. III, standard for “[t]he See Swiss 116 F.Supp.2d evaluating whether these satisfy contacts 221-22. we only Because consider contacts estab- appearance at 93 n. of information lished before the filed its com- about SAB on the internet in 1998 is not plaint Noonan, in December see relevant analysis. to our Noonan, we found that the Similarly, in has concedes that SAB government

The court could not ex- district office, number Massachusetts telephone or personnel, no company States, ar- a British jurisdiction nevertheless ercise over but the United employee are to Massachusetts contacts above that sent an gues that the described directly systematic when consid- solicited photograph plaintiff, and continuous company, Ticketmaster- aggregate.” “in the from a Massachusetts ered business Alioto, N.Y., $585,000 in orders from that Inc. v. and received Cir.1994). that In government contends at 93. Dona- company. The same conducts telli, jurisdiction show that “SAB attached the contacts no we said that Hockey States without business the United the National in Rhode Island over presence,” and physical years provided for a need which for ten League, to in- banking expands universe tele- games, “[a]s exhibition league officials at banking correspondent Island, and Internet and sold clude into Rhode games cast routine, must so too relationships Hockey League bank National products with the internationally Glater, ac- the bases under which In F.2d 470-71. logo. 893 at by the held accountable tive banks are corporation employed defendant Indiana they in which have customers jurisdictions Hamp- in New eight representatives sales state, shire, and conduct business.” in the and business conducted journals that circulated advertised trade may argument Compelling as this at 215. there. We said F.2d test legal it fails the respects, be in some contacts” did not suffice vestigial “these systematic” and contacts. for “continuous jurisdiction. Id. 217. for the exercise at “continu determining In what constitutes short, has not shown government In contacts, analysis our systematic” and ous and intermittent con- that SAB’s limited defen evaluation” fact-specific is “a rise with the States Noonan, tacts United forum. contacts with dant’s previously of what have under- level we in this factu guidance at 93. For systematic.” As as “continuous stood of con types al we look to “the inquiry, result, has not a made sufficiently continuous and deemed tacts showing needed for the exer- prima facie cases.” Id. systematic other jurisdiction. general personal cise of correctly pointed the district court As out, States contacts with United SAB’s Specific B. Jurisdiction than systematic continuous and are less asserts gener insufficient for found to be contacts contacts sufficient even if it has not shown previous cases. See jurisdiction al systematic” satisfy the “continuous III, at 224-25. F.Supp.2d Swiss jurisdiction, has general threshold for found Helicopteros, Supreme Court individual proved nevertheless contacts could not exer that a Texas district court for the exercise with the forum sufficient corpora cise over Colombian Determining specific officer to tion that sent its chief executive alleged has sufficient whether the negotiations; accept for contract Houston finding specific facts for a accounts checks its New York bank ed into three-part analysis. Phillips requires bank; bought equip on a Houston drawn Exeter, 196 F.3d 288. at a Texas training services from ment and First, ask an must inquiring to that personnel and sent corporation; undergirds training. whether claim facilities for corporation’s Texas out directly relates to or 416, 104 litigation arises U.S. of the defendant’s contacts with the fo- other related forum, contacts with the such Second, rum. the court must ask calls, mail, telephone or physical pres- whether those contacts constitute pur- ence. poseful availment of the benefits and We turn first alleged protections by afforded the forum’s laws. contact based on the relationship between Third, if the proponent’s case clears the Fitzgerald and SAB. The flaw in gov hurdles, first two then must argument ernment’s is that SAB’s business analyze the overall reasonableness of an relationship contract Fitzger with and/or exercise of light of a vari- ald, however, is not a contact with itself ety pertinent factors that upon touch the United States aas forum. See Saw- the fundamental fairness of an exercise telle, 70 F.3d at 1389 (stating requirement relatedness is not met by a We begin question with the of whether cause of action that arises out general of a government prima made a facie show- relationship parties, between the but rath ing that its claims were directly related to er, that the must action arise out of specif or arose out of SAB’s contacts with the ic contacts between the defendant and the United States. forum). A contract is “but an intermedi “The requirement that a suit arise step ate to tie serving up prior business of, to, out or be related the defendant’s in- negotiations with future consequences

forum comprises activities the least devel which themselves are the real object of the oped prong of the process due inquiry.” business Burger transaction.” King Corp. Ticketmaster-N.Y, 26 F.3d “We Rudzewicz, 462, 479, v. 471 U.S. 105 S.Ct. know to a certainty only that the require (internal (1985) L.Ed.2d quo ment focuses on the nexus between defen omitted). contract, tations itself, A by dant’s contacts and the plaintiffs cause of cannot automatically establish minimum Id.; Farrell, action.” accord Sawtelle v. contacts. Id. at 105 S.Ct. 2174. Cir.1995). 70 F.3d We Rather, Burger King developed what we begin by identifying contacts, alleged “ have described aas ‘contract-plus’ analy since there can be no requisite nexus be Jackson, Ganis Corp. sis.” tween the contacts and the cause of action (1st Cir.1987). Thus, 197-98 “prior Sawtelle, no contacts exist. Cf. negotiations and contemplated future con at 1389 (stating that the defendant’s con sequences, with ... along ac parties’ tacts are central prong each tual dealing course of ... must be evaluat tripartite analysis). ined determining whether the defendant” case, this government essentially has minimum contacts with the forum. alleges two relatedness contacts between Burger King, U.S. at SAB First, and the United States. 2174 (finding contract, that franchise which government asserts that the contractual a twenty-year envisioned relationship and relationship between Fitzgerald SAB and continuing forum, contacts with the consti (or States, the United as Fitzgerald’s suc- tuted a contact purposes of process due interest) cessor in contact, constitutes analysis). one which was overlooked the district Second, court. government The claims concedes injurious effects of there is no alleged Herrington evidence that or conversion States, any were felt in the United other SAB representative went to the and thus constitute a contact with the fo- United States in connection Fitzger rum. does allege any not ald’s accounts. SAB’s lack of a physical

622 States, however, not essential to either the for- is letter was in presence the United contract alleged the case for See breach of the not fatal to mation or 476, 105 471 U.S. at S.Ct. Burger King, government. the See between SAB and (“Jurisdiction in these circumstances Exeter, (stating 196 F.3d at 289 Phillips merely the not be avoided because may a purposes is related for that a contact fo- physically not enter the defendant did the contact is “instru- contract claim when Yari, State.”); rum Pritzker v. in formation of the con- mental either the Cir.1994) (“a (1st non-resident defen- breach”). Rather, letter in its the tract or always be able to elude the may dant not payment might that not simply gave notice simple expedients as remain- by net such occur, so, most, it can be considered at forum”). outside the When ing physically only marginally alleged instrumental to the lacking, we look physical presence is breach. that the defendant some other indication sum, having examined the business forum, such as mail or reached into Fitzgerald SAB and relationship between Burger King, telephone contacts. See States, which involves the United and/or 2174; at Mass. Sch. U.S. activities, in-forum we find that no Law, government The has Burger government has not satisfied example, the no such evidence here. For “contract-plus” requirement, see King’s not that the bank called record does show 478-79, 105 471 U.S. at him as a Fitzgerald or wrote to solicit in fact relationship demonstrate that this manage or to his account.5 customer Cf. Invs., Ltd., purposes Tak How the forum for the Nowak v. a contact with Cir.1996) (defendant’s cor- 716-17 inquiry. of the relatedness soliciting plain- business from respondence govern We now turn to the require-

tiff satisfied minimal contacts ment). argument ment’s that the effects of the Instead, that the evidence shows injuries by qualify in caused SAB’s activities accounts Fitzgerald opened the SAB in million as related contacts. The relatedness Antigua and that most of $7 States, focuses on whether directly quiry came not from the United for tort claims foreign from “other locations.” Swiss caused but the defendant’s conduct in-forum II, F.2d at 38. to the injury gave or rise cause Law, 142 F.3d at 35. action. Mass. Sch. of spe Although government does not in that role government asserts SAB’s March cifically argue point, SAB’s mil advising Fitzgerald laundering $7 letter to the Massachusetts district through an account drug proceeds lion informing Antiguan gov it that the Antigua subsequent and the bank’s dis Fitzgerald’s ernment had frozen accounts wrongful funds bursement of those caused contact. Saw is also See money to the effects—the loss of Unit (letter telle, and call 70 F.3d at 1389-90 were felt ed States by malpractice defendant in made to forum —which the United States. Because SAB refused “unquestionably case a contact were funds, allegedly converted to tender purposes analysis”). of our The letter injury effects of this were felt purposes not a related contact for States, claim, however, government opines because the the United government’s However, (in report up report from his SAB accounts. 5. There is record evidence Herring- investigator) specify Fitzgerald recip- does not was the phone dur- ton made calls Boston calls. ient of those setting ing period Fitzgerald was in which these in-forum effects are contacts are less tangible than presence[,] physical satisfy the relatedness element. ... inquiries are different....” Phil- Exeter, lips 196 F.3d at 289. The pur- point Because the can to no poses behind each prong bring this differ- in-forum activities SAB that relate to ence into focus. claim, attempts to bol jurisdiction ster its case for specific by The inquiry sepa relatedness relying on the in-forum theory “effects” general jurisdiction rates specific jur from inaugurated Jones, v. Calder 465 U.S. isdiction Ticketmaster-N.Y., cases. 783, (1984). 79 L.Ed.2d 804 F.3d at 206. When alleged contacts fall case, In that two newspapermen from being short of “continuous systematic” who working Florida were for the National so that the general jurisdiction exercise of Enquirer wrote an allegedly libelous arti unfair, would be those may contacts still cle about a California entertainer. Id. at support specific jurisdiction exercise of 784-85, 104 S.Ct. 1482. The was article if they are related to the cause of action. primarily phone based on calls to Califor Exeter, Phillips 196 F.3d at 288. The nia sources. Id. at 104 S.Ct. 1482. prong relatedness ensures fundamental However, Colder did not turn on the pres fairness protecting a defendant from mail, physical, ence or telephone con being hauled into an out-of-state forum tacts between the defendants and fo single based on a contact with that forum rum. Id. at 787 n. 104 S.Ct. 1482. wholly is unrelated to the suit at Instead, Supreme Court held that Cali issue. See World-Wide Volkswagen Corp. fornia could assert personal Woodson, 286, 291-92, 444 U.S. the newspapermen over “based on ‘ef (1980) 62 L.Ed.2d 490 (noting fects’ of [defendants’] Florida conduct that due process protects a defendant from California.” Id. at 104 S.Ct. 1482. inconvenient forums prevents states Unfortunately government, for from overreaching the boundaries of their case, though, in this Colder carry cannot sovereignty); Exeter, Phillips 196 F.3d at day. Calder “cannot stand for the (stating 287-88 that due process protects proposition broad that a foreign act with those whose extra-forum activities do not foreseeable effects in the forum state al make personal jurisdiction in the forum gives ways jurisdiction.” rise to specific foreseeable). When the nexus between Masters, & Augusta Inc. v. Nat’l Bancroft Inc., the forum contacts and the cause of action (9th Cir.2000). 223 F.3d attenuated, is too it violates fundamental inapposite Colder is to this case for a fairness to force a defendant with non number of reasons. non-systematic continuous or contacts to First, previously we have recog defend himself that forum. Mass. Sch. nized that Colder’s “effects” test was Law, 142 F.3d at 36 (arguing that a adopted “for determining purposeful avail B, letter A to from reporting on C’s ac ment in the context of defamation eases.” tions, cannot personal jurisdiction confer Noonan, added). 135 F.3d (emphasis at 90 over C in B’s home state because the Thus, the “effects” gauge test is a for connection between B’s state and C’s ex purposeful availment and is to be applied attenuated). tra-forum activities is too only after the prong relatedness has al ready purposeful been Although inquiry, satisfied. availment “there is a blurring though, natural focuses on relatedness and the defendant’s inten purposeful inquiries tionality. Noonan, availment in cases See F.3d at 90-91 (like one) this alleged which the contacts (discussing Colder’s requirement intent strengthen availment). be used prong, cannot prong This purposeful showing. relatedness purpose- the defendant when

only satisfied directs his activities voluntarily fully and Second, struggled some- courts “have expect, that he so should the forum toward & import.” what with Calder’s Bancroft receives, be he the benefit by virtue of Masters, have As we 223 F.3d at 1087.7 based on subject to the court’s noted, test Calder’s “effects” previously Exeter, 196 Phillips See these contacts. for use a defa- designed specifically Ticketmaster-N.Y., 292; F.3d at (cit- Noonan, mation case. at 207-208. having “adopted an effects ing Calder availment, purposeful addressed Calder determining purposeful availment test Noonan, See than relatedness. rather cases”). of defamation in the context intent of the (discussing the F.3d at 90 Thus, ever intended Calder was whether aiming their arti- by in Calder defendants torts, numerous other such apply to state). focused on Calder cle at the forum contract, is un- or breach of conversion in injury cause intent the defendants’ Indus., IMO Inc. Kiekert clear. See at a aiming their article forum Cir.1998) (3d 254, AG, (noting 261 155 F.3d publishing the and then forum resident courts, non- in Calder to applying that there, injury knowing article cases, “a adopted have mixture defamation at forum. 465 U.S. be felt would interpretations”); and narrow of broad 789-90, only contacts 1482. The 104 S.Ct. Co., F.2d 845 McGlinchy v. Shell Chemical defendants6 one of the Calder between Cir.1988) (9th (refusing apply 817 article was were that his the forum and claim). contract “effects” test to legal forum and the within the published widely Third, diverge the facts of Calder Calder, within the forum. injury occurred Although facts this case. from the 1482; 786, 790, see 104 S.Ct. at 465 U.S. is based on its “ef- significance Calder’s Keeton, also 465 U.S. case, the tort theory, in that actual fects” injury libel legal that the of (noting 1473 just consequences, oc- injury, or not offending material is “wherever the occurs Compare curred the forum. Keeton within circulated”). publica- Both the in-forum 770, 776-77, 465 Magazine, v. Hustler U.S. injury clearly were the in-forum tion and (1984) (tort 790 104 79 L.Ed.2d suit, so defamation plaintiffs to the related held to occur wherever generally of libel is ad- did not need to Supreme Court circulated), with material is the libelous pro- before relatedness prong dress II, of (legal injury 191 F.3d at 37 Swiss inqui- ceeding purposeful to the availment takes conversion occurs where conversion Thus, test is “effects” ry. since Calder’s Moreover, publication the in-forum place). availment only purposeful to the relevant (same), (5th 1999) with Cir. con- F.3d 6. Calder defendant had other The second AG, Ind., forum, telephone Inc. v. Kiekert IMO such as tacts Cir.1998) (3d ("Generally speaking, un California. sources located in calls he made to 785-86, Calder, at the tort S.Ct. 1482. der an intentional directed U.S. at Calder having impact upon it sufficient plaintiff and may other suffice to enhance in the forum conducting an review of exhaustive Without such contacts with the forum wise insufficient law, circuits do we note several case prong of Due 'minimum contacts’ agree Calder. appear to as to how to read not Lake, satisfied."), Co., Firetti, and is Process test Trading Compare Inc. v. Oriental (finding jurisdiction under Calder (8th Cir.2001) at 1423 (emphasiz- parte attorney obtained where ex nonresident telephone calls into ing numerous faxes knowing it out-of-forum court order from finding jurisdiction under Cald- forum in forum). Alaska, Brandt, injury er), used to cause would be Inc. v. and Wien Air provided the article impor- Colder an al and directed the district court to reeval- jurisdictional tant contact for purposes; a government’s uate the request because the case, contact that absent this since burden-shifting framework for the nega- any tortious or conversion breach of con- tion requirement that we laid out “under- in Antigua. tract occurred mine[d] the rationale for the district court’s decision.” 191 F.3d at 46. Fourth, We our precedent Calder-based dic noted precedents, that under our time- “[a] government’s tates “effects” argu ly properly supported request jur- ment for is insufficient here to show related isdictional discovery ness. “We merits have solicitous at- wrestled before with this tention.” Id. at 45. issue of whether the in-forum effects extra-forum activities suffice to constitute remand, On the district court heard ar- minimum contacts and have found in the gument about the government’s request negative.” Law, Mass. Sch. 142 F.3d at III, discovery. Swiss 36; Sawtelle, accord 70 F.3d at 1390-91 the court denied request. (relatedness showing was “tenuous at Considering only the relatedness element best” when based on “effects” of defen of the test specific jurisdiction, dants’ malpractice, committed outside government, said “the while as- forum, and on ancillary legal advice mailed serting that it has stated a ‘colorable case’ forum); into the Kowalski v. Doherty, in satisfaction of the minimum contacts Wallace, Pillsbury Murphy, & 787 F.2d requirement specific jurisdic- personal (1st Cir.1986) 11 (finding that in “effects” tion, scant offers in support evidence the forum equivalent are not to an actual that conclusion.” 116 F.Supp.2d at 222. injury in caused the forum by in-forum “Indeed, The court concluded: so bootless activities). ... government’s is the showing in here court, The district based govern- on the light applicable of the authority, that it has effects, ment’s mere showing of in-forum made no colorable claim sufficient to enti- rather than actual injury or contacts with- tle it to any discovery.” further Id. at 225 forum, in the found government’s re- (citation and internal quotation marks latedness showing “scant” so it did omitted). not consider the purposeful availment or have long We that “a diligent held

reasonableness elements of tripartite plaintiff who sues an corpora out-of-state jurisdictional analysis. III, Swiss 116 tion and who makes out a colorable case F.Supp.2d at 222. areWe likewise under- for the personam existence of in jurisdic government’s whelmed relatedness may tion well be entitled to a modicum Thus, showing. jurisdictional our analysis jurisdictional discovery if corporation proceed need no gov- further. Since the interposes jurisdictional a defense.” ernment has Sun satisfy failed to the first view prong jurisdictional Int’l, Condominium test, v. Flexel Ass’n argu- Ltd., (1st Cir.1997) (em specific jurisdiction ment for F.3d must fail. added); phasis accord Surpitski v. C. Discovery Jurisdictional Hughes-Keenan Corp., 362 F.2d 255- (1st Cir.1966). However, alternative, In “that government entitle requests Sunview, ment discovery is not absolute.” develop to additional facts. The at 964. A plaintiff asked for diligent discov must be ery in the initial proceedings preserving his or her before the Id. rights. More court, over, district but the court when plaintiff denied even has been II, motion. Swiss we vacated the deni- diligent and has made a claim colorable Thus, even if this Id. at 288 n. 1. Court jurisdiction, the district court still personal (rather to decide whether than under a ruling has “broad discretion were afresh review) required.” is Crocker Hilton discovery juris- on the restricted standard of Ltd., Barb., Int'l issue, discovery it is not clear that dictional Cir.1992). a discovery would be warranted. As re- sult, district hardly we can state that the reversing a dis The standard for wrong” denying dis- “plainly court was jurisdic court’s to disallow trict decision a claim. covery for lack of colorable trial high. discovery tional Given determining discretion court’s broad that, in held addi We have also discovery, grant jurisdictional whether claim, a colorable presenting tion to only upon be overturned ruling will “[a] preserving his diligent must be is, injustice, showing of manifest clear dis rights to be entitled discovery order the lower court’s where Sunview, This covery. wrong and resulted sub plainly was obligation present facts to includes the party.” prejudice aggrieved to the stantial why jurisdiction the court which show (internal Crocker, quota 976 F.2d at 801 discovery permit if were be found would omitted) added); (emphasis see tion marks Lombardi, 239 F.3d ted. See Barrett v. Noonan, F.3d at 94. also (1st Cir.2001). government, case, has been In this here, diligent. than As SAB has been less court’s to show that the district unable out, only govern points appeal did wrong” discovery “plainly denial of description types out its ment flesh Even if this and an abuse of discretion. (1) hopes of contacts it to discover: “the the district court’s disagreed Court origins and nature of SAB’s relations and jurisdic- assessment (2) Fitzgerald;” with contacts “business “bootless,” III, showing tional was Swiss meetings place that took the United disagreement F.Supp.2d such States, by telephone, or were conducted overturning for an insufficient basis States, relating persons with the United In order to re- district court’s decision. (3) accounts;” subject to the “information court, we would have to verse the district might by been sent mail or have analysis “plainly wrong find that its was to the other means” SAB United prejudice.” and resulted substantial States; (4) “origin and nature of Crocker, 976 F.2d at 801. We can make no any between other business relations” finding here. such account holders or SAB and American analysis government’s of the After our partners. government business govern- argument, it is unclear given should have the district court this presented what amounts to a ment has description of the “addition more detailed claim personal “colorable” for inquiry” that it pertinent al avenues of above, re- government’s As discussed Corp. v. hoped pursue. Whittaker And, showing unconvincing. was latedness Corp., United Aircraft jurisdic- personal to find specific order (1st Cir.1973). government Because the tion, prongs tripartite all three of the test below, they present specifics did not these Exeter, Phillips must be satisfied. analysis our of whether do not enter into Moreover, F.3d at 289. if the fails denying its discretion in the court abused respect to strong showing to make a al request discovery. for Failure to prongs, two then the exercise of first contacts, to estab lege specific relevant likely to personal jurisdiction is more be jurisdiction, jurisdic- in a prong. lishing personal the third found unreasonable under discovery request tional can be fatal diction over IMB.” 191 F.3d at 46. We Crocker, request. See 976 F.2d at noted lack “[t]he of a developed record and (denying discovery where appellants the fact that the district court yet has not information, sought irrelevant to forum expressed its views on this motion” as contacts, on solicitation of business and added reason decline to address IMB’s provision goods or services outside argument on the merits. jurisdic- Id. The Noonan, forum); 135 F.3d at 94 tional question over IMB can now be re- (denying discovery plaintiffs sought where solved, light of this Court’s decision information about the interrelationships affirming the lack of personal jurisdiction defendants; among the information irrele- over SAB. availment). to purposeful vant The government concedes that unpersuasive Given overall ease personal jurisdiction extends to IMB only personal jurisdiction, government’s (1) if government prima makes a facie to allege specific failure contacts was jurisdiction case for (2) over SAB and if discover, seeking to and the wide discre- can establish ego alter court, tion given to the district we cannot liability. I, See Pleasant St. 960 F.2d at conclude, in light precedent, of our (“if [subsidiary] PSC’s contacts can the district court was “plainly wrong” in be to [parent ITD, attributed company] discovery. denying jurisdictional then the hurdle can be vault ed”); Donatelli, (“Since 893 F.2d at 466 III. personal essence is to complaint, the government bring responsible parties court, before the that IMB alleged is SAB’s ego. alter At a corporation which is actually responsible the March 2000 hearing on SAB’s subsidiary’s for its decision to undertake dismiss, IMB’s motions to the district should, instate fairness, activities in all be dismissed the case within the state court’s against IMB “for failure adequately to reach.”). Since the plead allegations of alter ego un liability and able to make the personal jurisdiction.” lack case for Swiss over III, SAB, 116 F.Supp.2d at “if’ 219. On the first has appeal, the not been satisfied. government challenges Therefore, ruling. this personal jurisdiction In the cannot ex alternative, it contends that it should have tend to IMB. We thus affirm the district been allowed to take discovery about court’s dismissal of against the case IMB. SAB, IMB’s relationship with arguing, as below, it did that discovery is needed be IY. “the cause exclusively defendants hold the reasons, For the foregoing agree we critical information explain that would the with district the court’s dismissal of the events surrounding disappearance the of case against SAB and IMB for lack of

the funds.” personal jurisdiction. II, In Stuiss IMB argued that it could Affirmed. not be held hable for SAB’s alleged mis- conduct because was not SAB’s alter LIPEZ, Circuit Judge, dissenting. ego. We said this argument that “premature” The majority it involved “reaching because concludes that the district case,” which, merits of a according to did not abuse its in discretion deny- Supreme precedent, Court ing jurisdictional “should await a discovery. I respectfully determination of the district juris- disagree conclusion, court’s with that and there- editor, South, the re- and John with the dent and My disagreement

fore dissent. offending the ma- article. majority large part from wrote the porter stems who Jones, 465 of jority’s treatment Calder v. were both Florida resi- Calder and South 79 L.Ed.2d 804 104 S.Ct. U.S. dents, undisputed that arti- it was (1984). govern- assessing whether researched, written, edit- cle had been relate to claims arise out of or ment’s tort Indeed, never even Calder ed Florida. forum, majori- contacts with the SAB’s in connection with called California that, ‘effects’ test “since Calder’s ty states acts with reference to “all of his article: avail- purposeful only to is relevant apparently per- article were [the Jones] strength- it cannot be used prong, ment Calder, formed Florida.” Jones showing.” government’s relatedness en the CaLRptr. Cal.App.3d squared cannot be with reasoning That (1982). can be holding Calder’s Appeal of The California Court conclud of the de- on” the in-forum effects “based causing fact that the actions ed “[t]he activity. 465 U.S. out-of-forum fendant’s performed were the effects California Calder, 1482. Under at prevent did not the State outside the State contacts in jurisdictional are those effects jurisdiction over a asserting from cause to the relatedness right, own relevant their arising out of those effects.” Cald action requirement. er, at 104 S.Ct. 1482. U.S. majority I Although agree with noting “approv Supreme agreed, Court yet not made out a has employed by the al of the ‘effects’ test I jurisdiction, prima specific facie case for 6, 104 n. court.” Id. California argu- effects government’s that the believe § 37 of test was drawn from 1482. That specific creates a “colorable” ment case (Second) of Conflicts the Restatement claims respect with to its tort Laws, provides: I which Accordingly, conclude against SAB. its discretion

the district court abused judicial power A has to exercise state re- summarily denying government’s an who jurisdiction over individual discovery on the quest jurisdictional in the state an done causes act effects per- case for ground respect any cause elsewhere jurisdiction is “bootless.” sonal from these unless arising action effects of the effects and of the the nature I. state relationship individual’s majority over disagreement with My jurisdiction unrea- make exercise of to a differ- import of Calder leads me sonable. question ent on the view language of the test As the Restatement Thus, turning to discovery. before mirror of our suggests, its elements those I address discovery question, first must jurisdiction specific inquiry. traditional itself, for the implications and its Calder clause, jurisdiction authorizing The first specific for government’s case in state “one who causes effects the over elsewhere,” A. The Relevance of by Jurisdictional an act done establishes Effects are relevant in-forum contacts effects jurisdictional analysis. The second the an in out of dispute The Calder arose jurisdic- limits the exercise of clause then in the allegedly published libelous article in which there is a tion to sufficient cases Jones, a Shirley Enquirer National about con- the defendant’s forum nexus between Jones well-known entertainer. California effects) (here, Calder, the in-forum presi- tacts and Enquirer, Ian sued the

629 plaintiffs of cause action. That clause cor The circumstances of easily Calder satis- relates to the requirement relatedness fied the first two clauses of the Restate- specific jurisdiction, which is satisfied ment article, test. The written by defen- plaintiffs when the cause of action either dants Calder and Florida, South in had “aris[es] out of or relate[s] to the defen caused harmful effects in state; the forum dant’s contacts with the forum.” Heli as the observed, Court “the brunt of the copteros Colombia, Nacionales de S.A. v. Jones], harm [to in terms both of [her] Hall, 408, 8, 104 1868, U.S. 414 n. S.Ct. emotional distress and the injury to her (1984) added). L.Ed.2d 404 (emphasis professional reputation, was suffered in haveWe said that think “we it significant Calder, California.” 465 U.S. at that the constitutional catchphrase is dis S.Ct. 1482. cause of Jones’s action arose junctive nature, in referring to suits aris out of those effects. See id. at ing out of or relating to in-forum activities. Thus, S.Ct. 1482. as the majority ex- believe We that this added language por plains, since the in-forum effects tends added flexibility signals and a relax Calder defendants’ actions “were clearly ation the applicable standard.” Ticket related to plaintiffs suit, defamation master-NY, Alioto, Inc. v. ... the Supreme Court did not need to (1st Cir.1994) (citations internal quota address the prong relatedness before pro- omitted). tion marks There is no reason ceeding purposeful availment inqui- to depart from our usual understanding ry.” inquiry relatedness in this case. The Court began that inquiry by distin- Therefore, although the Restatement uses guishing the defendants’ situation from “arising out language of’ to describe its that of a hypothetical welder who works on requirement, relatedness requirement boiler Florida that explodes later also can be by satisfied a showing that the California. See id. at plaintiffs cause action “relates to” the The welder obviously can “foresee” in-forum effects of the activity. defendant’s might boiler make its way to California The final clause of the effects test adds a and cause harmful Yet, effects there. Id. proviso, forbidding jurisdic- effects-based observed, Court it may well be unfair tion in cases where “the nature of the to subject welder to effects and of the individual’s relationship California when he “has no control over to the make [forum] juris- exercise of and derives no benefit from his employer’s (Sec- diction unreasonable.” Restatement sales distant State.” Id. ond) Laws, § 37. Prior to of Conflict of Calder, Unlike welder, the unfortunate Supreme Calder explained Court had and South general were “not charged with mere “reasonableness” inquiry untargeted negligence.” Rather, mandated Id. effects test overlaps large part emphasized, Court intentional, with the purposeful “their availment inquiry. Court, allegedly tortious, See Superior Kulko v. actions were expressly U.S. aimed 56 L.Ed.2d forum state.” Id. alleg- (1978). Thus, edly effects-based story libelous “concerned the Califor- “unreasonable” under the nia activities of Restatement a California resident” test where the defendant has not whose “career intention- was centered in California.” ally reached out to the 788-89, forum state in Id. at some 104 Moreover, 1482. S.Ct. way, so that he or she reasonably the could defendants the knew article “would anticipate being haled into there. have a potentially devastating impact” on 96-98, id. See at 98 S.Ct. Jones, 1690. and that she would suffer “the 630 be used prong so] cannot California, [and availment where injury” of the

brunt related- 789-90, government’s the strengthen 104 to Id. at worked. lived and she explained, I have showing.” As short, “the ness California was 1482. S.Ct. approved “effects” test story and of Restatement of the both point focal It 789, element. 1482. a relatedness at 104 S.Ct. includes Id. Calder harm suffered.” ‘reasonably effects-based to exercise Thus, permits “must a state defendants ” there,’ plaintiffs when the only into court being jurisdiction haled anticipate the in- World- or relate to 790, (quoting 1482 out of 104 S.Ct. claims arise id. at Woodson, 444 acts. See Corp. the defendant’s Volkswagen v. effects of forum Wide 559, Laws, 297, (Second) L.Ed.2d 286, 62 100 S.Ct. U.S. Restatement of Conflict of reasonably 787, (1980)), jurisdiction Calder, 104 37; and U.S. at S.Ct. § 490 465 of jurisdiction [defen- on the ‘effects’ be “based effects-based (noting could that California,” id. conduct claims arose Florida where Jones’s dants’] was proper 789, at 104 S.Ct. of the defen- effects of the California out actions). dants’ Reading: Majority’s Calder B. The that the majority not suggest does Related Contacts not against SAB are claims government’s reasonable- focus on the Calder’s Given of SAB’s in-forum effects related to the the basis on exercising jurisdiction ness of Accordingly, activity. allegedly tortious effects, easy to understand it is “cannot effects test says when “is that Calder majority’s assertion strengthen be used aWhen purposeful availment.” gauge for majority must showing,” relatedness jurisdiction on to base plaintiff seeks Calder, ef- that, the in-forum under mean activity defendant’s in-forum effects them- contacts jurisdictional not fects are elsewhere, likely turn on such case will that selves, additional evidence merely but alleg- whether defendant’s questions as Based purposefully. acted the defendants intentionally and conduct was edly tortious Calder, the ma- interpretation that state, and at the “expressly aimed” forum inquiry that the relatedness jority states felt the harm” was “brunt of whether the only when “the defendant’s can be satisfied 789, Calder, 104 S.Ct. 465 U.S. at there. injury or caused conduct in-forum fall under inquiries properly 1482. Those cause of action.” gave rise to the prong because availment purposeful whether designed to they are determine However, adopted the effects test intentionally i'eached out the defendant authorizes explicitly Calder in the forum cause harm state.8 act of “an in-forum effects based on the (Second) Restatement major- done elsewhere.” Contrary to conclusion Laws, are § effects 37. Those however, that Cald- it does not ity, follow Conflict of contacts, from apart relevant purposeful only to the “is er relevant " 'purposefully the defendant satisfied if purposeful avail- that 8. Calder clarified of the fo the defen- at requirement is met activities residents whenever directed’ his ment intentionally alleged reaches to the forum in out litigation dant from results rum and the seeking or benefits way, whether it is some relate to’ those injuries 'arise out of or ” reaffirmed causing The Court harm. 472, U.S. activities.' Rudzewicz, King Corp. ex- Burger point in (1985) (quoting Keeton L.Ed.2d requires that indi- process plaining due Inc., Mag., 465 U.S. v. Hustler warning" that their activi- viduals have "fair (1984); Helicopte L.Ed.2d 790 S.Ct. in the subject might them to ties 1868). ros, 414 n. U.S. forum, warning requirement the fair any link plaintiffs between the tort claims jurisdiction which might just as easily be and the defendant’s “in-forum conduct.” based on some other forum contacts. Thus, Calder, in the Court rely did not The majority offers two bases for its mail, the presence physical, or telephone reading First, of Calder. it emphasizes contacts between the defendants that in Co., Noonan v. Winston 135 F.3d Instead, forum. jurisdiction it held that (1st Cir.1998), we said that Calder proper “based on ‘effects’ of [defen “adopted an effects test for determining dants’] Florida conduct in California.” purposeful availment in the context of def- Calder, 1482; U.S. at amation cases.” It is important to see that McNell, see Hugel also v. 886 F.2d statement context: (1st Cir.1989) that, (explaining under Cald The decisive due process issue in this er, knowledge “[t]he that major impact [defamation] case is whether the defen- injury would be felt in the forum dants’ activities satisfy purposeful State constitutes a purposeful contact or requirement. availment Plaintiffs cor- substantial whereby connection the inten rectly draw our attention to Calder v. tional tortfeasor could reasonably expect Jones, in which the Supreme be haled into the Court forum State’s courts to actions”); adopted defend his an effects test for Haisten v. determining Grass Valley Fund, Ltd., Med. purposeful Reimbursement availment in the context of (9th Cir.1986) 784 F.2d (noting defamation cases. that in Calder “the ... Court allowed (internal omitted). Id. citation Noonan jurisdiction exercise of over a defendant cannot weight bear the the majority gives only whose ‘contact’ with the forum state it. Calder did establish a test for deter- ‘purposeful [was] direction’ of &foreign mining purposeful availment defamation act having (first in the forum state” effect cases. The majority’s reading depends on added)). emphasis It difficult to under entirely different point that Calder did jurisdiction stand how could have been not also establish can be permissible in those circumstances were based on the in-forum effects of out-of- the in-forum effects of acts done elsewhere forum activity when such effects relate or not themselves contacts. give rise to the cause of action. Noonan Indeed, the majority’s methodology did not all, discuss relatedness and so would seem compel a result contrary to provides support no majority’s re- that reached in Calder. On the majority’s strictive interpretation of Calder. understanding, “the effects test ... is to Second, majority points out that “we be applied only the relatedness prong after have before wrestled [the] issue of has been satisfied.” That creates quan- whether the in-forum effects of extra-fo dary plaintiff for the whose cause of action rum activities suffice to constitute mini arises out of or relates to the in-forum mum contacts and have nega found effects of activity. out-of-forum If those tive.” Mass. Sch. v. Law Amer. Bar effects are off-limits during the related- Ass’n, (1st Cir.1998). 35-36 inquiry,

ness and if inquiry be must support further major point, completed before the effects can be taken ity cites Wallace, Kowalski v. Doherty, into account under purposeful avail- (1st Pillsbury & Murphy, 787 analysis, F.2d 7 ment then Cir. will never 1986), Farrell, be and Sawtelle able establish on” “based Calder, Cir.1995), therefore, those effects. is a which we held dead only letter. The cases in which New Hampshire juris in-forum could not exercise effects could be considered are those diction foreign over law firms based on sure, effects that lack in-forum To be outside acts committed negligent

allegedly juris intentionality are still requisite those cases in the discussed the state.9 We Law, taken into and con- must be contacts that Massachusetts School dictional of that, Hampshire “[j]ust analysis. as the New Calder cluded in the overall account without negligence, conclusion, of and our cases do [out-of-state] effects that compels more, action New not sustain an could But other contacts suggest otherwise. not actor, see negligent the Hampshire against defendant, forum, and the the the between Kowalski, too the Mas- at so necessary in order to render are litigation [out- the [defendants’] effects of sachusetts reasonable. jurisdiction exercise of more, actions, fail to sus- without of-state] (Second) Restatement See of of Conflict court.” in Massachusetts tain an action a (“The that Laws, fact § 37 cmt. e Sawtelle, (also citing at 36 F.3d ... foreseeable [forum] in the effect 1394). F.3d at give [forum] not itself suffice will defendant.”); less mention Calder — much jurisdiction did not over judicial We School rely it—in v. Potomac Brandywine Corp. on Massachusetts Panda of Kowalski, (5th Law, Neverthe Co., or Sawtelle. F.3d Power Elec. are con less, holdings those cases Cir.2001) our of an that “the effects (explaining I that have the effects test sistent with are to be assessed intentional tort alleged Colder, in order for Under described. the defendant’s analysis of part of the as the in- solely on jurisdiction to be based (internal forum” contacts with the relevant activity, of defendant’s forum effects omitted)). marks quotation that the defendant plaintiff must show Here, dispute does not majority very purpose” causing of acted “for the effects—the harmful actions caused SAB’s Lake v. in the forum. harmful effects Nor money' States. the United loss —in (9th Cir.1987); Lake, harmful effects that those dispute does it Laws, (Second) Restatement Conflict of claims of to the government’s are related (“When done with § the act was 37 cmt. e unjust enrich and wrongful conversion ef causing particular the intention of therefore, is question, crucial ment. The state, likely in the the state fects satisfy purpose actions whether SAB’s the defen jurisdiction though judicial have is, whether inquiry; ful availment with the had no other contact dant allegedly tor- aimed” “expressly SAB (or state.”). was made showing No such with the activity at the States tious United Massachusetts School attempted) even of the harm” brunt knowledge “the Sawtelle, Law, Kowalski. those and of cases, Calder, 465 U.S. at felt there. would be therefore, effects-based 789, 104 under “unreasonable” would have been test, in- not because the Restatement Purposeful Availment C. contacts, but be effects not forum were two- imposes a have said that Colder We the effects” was such cause the “nature of availment, requir- part purposeful test not rest them could ) (1) that it felt to show ing (Second alone. Restatement of Conflict tortious injurious effects of defendant’s Calder, 37; Laws, 465 U.S. § also see (2) forum, that the defen- in the Kulko, act 789-89, 1482; 436 U.S. at injury” to cause act was “calculated 96-97, dant’s 98 S.Ct. 1690. Sawtelle, 11; at 1390. I address and Sawtelle that 9. We reasoned Kowalski below, injury effects thing distinction between injury an are not same the effects of Kowalski, analysis. purposeful part availment 787 F.2d at injury itself. See as the plaintiff Noonan, to there. 135 F.3d arm requires statute an in-forum injury as Calder, at 90 (citing 791, 465 U.S. at 104 a prerequisite See Swiss 1482). The government easily satis II, 191 3(d) F.3d at § 38 (applying fies the first prong. The loss of the forfeit long statute, Massachusetts arm which au- million to the United $7 States thorizes jurisdiction who, over one inter aas result of alleged SAB’s conversion and alia, causes “tortious in injury this com- unjust enrichment necessarily injuri had monwealth”); Kowalski, see also 787 F.2d ous effects that felt in were the United at 11 (applying similar New Hampshire II, States. In Swiss we concluded that the statute). Our inquiry here is not rigidly so “legal injuries] by” occasioned the torts of confined, where strict give way rules unjust conversion and enrichment occurred “traditional notions of fair play and sub- Antigua, where the conversion and en justice.” stantial Int’l Shoe Co. v. Wash- richment place. took United States ington, 310, 316, U.S. 66 S.Ct. Bank, Ltd., Swiss Am. 191 F.3d (1945) (internal L.Ed. 95 quotation marks Cir.1999). Nevertheless, we acknowledged omitted). Given the flexible nature of our that, “upon the occurrence of the alleged process due analysis, we should hesitate conversion and consequent unjust en before adopting a bright-line rule that in- richment, the States United felt the effects forum effects do not jurisdic- constitute of a injury tortious [United States].” tional contacts unless they also can be at Id. deemed “injury.” an The majority suggests that the fact that That say is not to that the situs of the government’s injury occurred in Anti plaintiffs injury is juris- irrelevant to the gua distinguishes this case from Calder. dictional analysis. In cases where the in- Kowalski, 787 at 11 (distinguish Cf. jury occurred forum, outside the ing between injury effects for pur plaintiff may find it difficult to satisfy the poses of the Hampshire New long-arm second prong test, of the Calder which re- statute, which requires plaintiffs quires a showing that the defendant’s act injury forum); occur in Sawtelle, was “calculated” to cause the harmful ef- F.3d at that, Kowalski, 1390 (explaining fects in the forum. inquiry That is de- rejected “we plaintiffs that, contention signed to determine whether the nature of because the of the [defendant ‘effects’ law] effects is such that reason- firm’s negligence felt in were New Hamp ably can alone, based be on them and it is shire, the law firm had injury caused an here prima facie there conduct directed at fo case for jurisdiction The govern- falters. .... injury, rum The if any, occurred in ment argues that “SAB knew that its in- Massachusetts”). here, Calder, Yet as in tentional conduct in Antigua would cause suffered “the brunt of the injury to the United government.” States Calder, harm” in the forum. 465 U.S. at That is not enough. 789, 104 S.Ct. 1482. That sug similarity must show that SAB’s actions were “ex- gests that the outcome our pressly aimed” at the United States as a analysis should not different be case this Calder, forum. 465 U.S. at 104 S.Ct. simply because the injury caused by libel 1482 (distinguishing the negli- is deemed to case occur wherever the libelous welder); gent Alaska, circulated, Wien Air material is Inc. v. while injury Brandt, (5th Cir.1999) conversion is deemed to occur where (“Foreseeable place. conversion took injury Such alone not formalistic sufficient distinctions can helpful in specific jurisdiction, be to confer cases like absent the II, Swiss where applicable long- state direction of specific acts toward the fo- was a the forum place of business cipal rum.”); Burger King, 471 U.S. cf. been ar to show (“Although fortuity,” it has insufficient “mere injury foreseeability causing gued aimed its actions expressly the defendant be sufficient should in another State forum); Group, Inc. v. Cen at the ESAB ..., there contacts (4th [minimum] establish tricut, Inc., Cir. that this consistently held has the Court 1997) jurisdiction where (finding no not a ‘sufficient foreseeability is of kind acquisition of the knew that its defendant juris exercising personal benchmark’ would result trade secrets plaintiffs omitted) (footnote (quoting diction.” not plaintiff, but did sales for lower 295, 444 at Volkswagen, U.S. World-Wide intentionally targeted behavior “manifest 559)). state). the forum focused on” at and in that SAB’s government argues The that is needed to show Something more forfei preliminary defiance tentional “purposefully directed” actions were SAB’s court by the district ture order issued at the aimed” United States. “expressly or The for aiming. express such constitutes has not demon- government Because prop the forfeited order identified feiture were that actions “intention- strated SAB’s into deposited as “funds which were erty forum,” focused on the ally targeted at and Ltd., Bank, American the Swiss Indus., 263, the in-forum 155 F.3d at IMO Bank in National St. American Swiss a provide not those actions do effects of Johns, period the time Antigua during jurisdic- the exercise of sufficient basis for 23, 1987.” through June 1985 September qualify as Although effects tion. those was aware of undisputed SAB It is related) (and, explained, Ias have relevant order, writing to the responded by and the between SAB United Anti- contact to it that the inform district forum, “at- that contact is too Fitzgerald’s frozen as a had States guan government However, had requirement fact that SAB satisfy accounts. to tenuated” it took for itself money notice 471 Burger King, purposeful availment. (internal to the States belonged United 475, quota- 2174 105 U.S. at S.Ct. not, itself, make the United States does omitted). In the words of marks tion alleg point focal of SAB’s as a Restatement, nature of the “the effects forum Third activity. As the Cir tortious edly relationship to the and of the [defendant’s] observed, not “carve did has Calder cuit of [effeets- make exercise [forum] exception torts special out a intentional unreasonable.” Re- based] analy specific the traditional Laws, (Second) statement of Conflict sis, always could sue in so that Thus, § must demon- 37. Indus., Inc. his or her home state.” IMO had other strate that SAB contacts (3d AG, 265 Cir. v. Kiekert “such that the maintenance the forum 1998). Therefore, enough be cannot not offend ‘traditional notions the suit does knew it acted the defendant when ” justice.’ Int’l and substantial play of fair id. lived in the forum state. See victim Shoe, (quoting at 66 S.Ct. 154 326 U.S. the defendant (“Simply asserting that 457, 463, 61 Meyer, 311 U.S. Milliken v. place of plaintiffs principal knew (1940)). 339, L.Ed. 278 S.Ct. would located in the forum business meet ‘ex [the insufficient itself to be Factors Gestalt D. accord requirement.”); pressly aimed’] in- I concluded that the Although have Investors, Inc., Corp. v. Southmark Life activity (5th Cir.1988) (conclud forum effects of SAB’s lack 851 F.2d juris- support purposefulness prin- requisite plaintiff's that the location of the ing own, my inquiry diction on their does not whether the defendant does business with Supreme end there. The Court has laid forum, Nowak, 94 F.3d at and the assessing out five criteria for the overall distance between the place defendant’s reasonableness of an personal exercise of forum, business Ticketmaster-NY, and the Burger King, See U.S. Inc., 26 F.3d at 210. As the majority has 476-77, cases, In close explained, the record does not show that those criteria —which we have termed the SAB does business in the United States. factors,” Foster-Miller, “gestalt see Inc. v. addition, the distance Antigua from Canada, Babcock & Wilcox the United States “appreciable.” Id. (1st Cir.1995) “may tip the constitu — reasons, For these the burden on SAB of Inv., tional balance.” Nowak v. Tak How litigating a United States district court Inc., Cir.1996); ac relatively Massachusetts is a heavy one. 477, cord Burger King, 471 U.S. at 105 Co., See Asahi Metal Indus. Supe- Ltd. v. 2174 (explaining gestalt factors Court, 102, rior 480 U.S. 107 S.Ct. 94 “sometimes serve to establish the reason (1987). L.Ed.2d 92 “This Court has recog- ableness of upon a lesser nized, however, that it is always almost showing of minimum contacts than would inconvenient costly and party for a to liti- otherwise be required”). they Even if do gate in foreign jurisdiction.” Nowak, a balance, not alter the constitutional Thus, F.3d at 718. for this factor to be gestalt factors can be in important deter significant, “the defendant must demon- mining whether plaintiffs jurisdiction strate that exercise of in the al showing is “colorable” enough sup to present circumstances is in spe- onerous a port a request jurisdictional discovery. cial, unusual, or constitutionally other sig- Therefore, inquiry is in Id.; way.” nificant see also Pritzker v. complete in this case without consideration Yari, (1st Cir.1994). 42 F.3d There of gestalt factors. is nothing suggest an especially onerous Those plaintiffs factors are “the interest burden here. in relief; obtaining convenient and effective Moreover, Supreme as the Court said in the burden imposed upon the defendant Asahi, “often the interests of the requiring appear; it to adjudi- the forum’s and the forum in the jurisdic- exercise of interest; catory judicial sys- [forum] justify tion will even the serious burdens tem’s interest in the place adjudication; of placed on alien [an] defendant.” 480 U.S. and the common interest of all affected II, at 107 S.Ct. 1026. In Pleasant St. sovereigns ... in promoting substantive we found that the requiring burden of a social policies.” Donatelli v. Nat’l Hockey Scottish corporate defendant appear in (1st League, Cir.1990). “substantially Massachusetts was out- We refer to “gestalt” them as the factors weighed by Massachusetts’ interest in ad- “because, ease, any given in they may nei- judicating dispute plaintiffs’ this and inter- ther be amenable to mechanical application est in obtaining convenient and effective capable nor be producing of an open-and- Elec., relief.” United Radio & Mach. shut result. Their primary function is Workers 163 Pleasant Corp., St. simply put[ to ... sharper ] into perspec- (Pleasant Cir.1993) St. tive the reasonableness and fundamental II). This case is similar. exercising jurisdiction.” fairness of Fos- ter-Miller, Inc., 46 F.3d at 150. Our cases recognize that courts “must

In assessing the burden appearance accord deference to the plaintiffs choice of defendant, on the Nowak, we have considered forum.” 94 F.3d at 718. As in for- court issued its district Kong de- Massachusetts Nowak, involving Hong a a suit order, in the “acting pub- that a Massachu- and that fendant, obvious feiture “it is Barbuda,” than convenient” and Antigua forum is more lic interest of setts Moreover, the Unit- Antigua. forum in Id. “released freeze Antiguan government interest in clearly strong has a ed dis- approved States and on the funds order laws. its forfeiture enforcement agreed in manner position of funds obtaining judicial system’s interest The approved by the Gov- by the Banks and contro- resolution of the the most effective ernment.” jurisdic- favors the retention versy “also IMB, govern- not the While SAB II, Pleasant St. dispute.” tion over this are the defendants this Antigua, ment of court has an at 46. The district case, requires factor us gestalt fifth ensuring that its own forfeiture interest sovereignty account the concerns take into litigating all is satisfied and claims order Antiguan gov- by this letter. raised Fitzgerald’s pro- criminal arising out of million of the for- has claimed ernment $5 Keeton, See ceeding in Massachusetts. funds, support feited cites (explaining U.S. a 1990 order of the to do so decision litigating an interest in that the forum has Although that Antiguan High Court. underlying out of the arising all claims alleged- affect the million claim does not $2 case). libel SAB, by important it is an ly converted re- gestalt the final factor discussing In remaining million. for the $5 consideration Supreme Court lating sovereignty, Therefore, briefing further at least without is when the defendant a has said that con- sovereignty these by parties sovereignty factor of foreign entity, cerns, govern- I cannot conclude analysis “calls a the reasonableness gestalt factors showing ment’s under is and sub- procedural court to consider the enough “tip the constitutional strong other nations policies stantive of whose Nowak, F.3d at 717.10 here. 94 balance” by affected the assertion of interests are Nevertheless, of the consideration these Asahi, jurisdiction” by the court. 480 U.S. my conclusion gestalt factors reinforces case, 115, In this 107 1026. there jur- specific case for government’s that the sovereignty is- potentially significant is a enough to merit the isdiction was colorable reach, not court did sue district by the dis- jurisdictional discovery denied not discuss in parties and which the do view, that denial my trict court. was letter, 29, January In a 1998 their briefs. wrong, and an abuse of discretion. plainly Secretary informed Antiguan Cabinet Fitzgerald’s that it froze the United States II. of evidence that funds 1990 “because briskly denied The district court illegal proceeds were of the monies request jurisdictional dis government’s “In also states: conduct.” letter covery, explaining that High from our judgement handed down ... that it showing was “so has bootless dated December Court to enti sufficient made no colorable claim Fitzgerald was not the owner of found that any discovery.” United tle it to further says then these funds.” The letter Bank, Ltd., States Swiss Am. Antiguan government discussed the (Swiss (D.Mass.2000) 217, 225 F.Supp.2d with after disposition of the funds SAB inquiry specific jurisdiction with the relat- weighing analy- emphasis that the 10. It bears by the first instance sis should be done in edness element. court, should not have ended district which III). That determination is based on a Id. at 255. Surpitski While is an older case, misunderstanding import legal we have cited and reaffirmed its dis Calder, an covery-friendly and therefore constitutes abuse holding numerous times. States, II, Koon 46; of discretion. v. United 518 See Swiss 191 F.3d at Sunview 81, 100, Condo., 964; U.S. 135 L.Ed.2d II, 116 F.3d at Pleasant St. (“A (1996) 18; district court definition 987 F.2d at 48 n. Boit v. Gar-Tec Prods., Inc., (1st abuses its discretion when it makes an Cir. law.”). error of 1992); Corp. Whittaker v. United Aircraft Cir.1973). Corp., 482 F.2d consistently We have held to the rule Condo, In Sunview explained we that “a plaintiff may jurisdictional that a take dis diligent plaintiff who sues an out-of-state covery if its claim is “colorable.” Sunview corporation and who makes out a colorable Int’l, Ltd., Condo. Ass’n v. Flexel ease for the existence in personam juris (1st Cir.1997). 962, 964 The “colorable” or may diction well be entitled to a modicum obtaining jur “not frivolous” standard for jurisdictional discovery if corpora isdictional discovery requires some show tion interposes defense.” ing discovery likely is needed or to be 116 F.3d at 964. Jurisdictional discovery However, showing signifi useful. is appropriate plaintiff “where the had cantly lower than the prima showing facie diligent been and was somewhat unfamiliar jurisdiction, which requires adversary’s his practices,” business “to every demonstrate the existence of fact Boit, 967 F.2d at complex “where required satisfy long- both the forum’s factual matters are in question,” Whittaker arm statute and the Due Process Clause of 482 F.2d at II, Corp., the Constitution.” Pleasant St. (internal quotation F.2d at marks omit similarly Other circuits allow for discov

ted). jurisdictional discovery ques ery diligent when a plaintiff with a color- tion, contrast, govern is whether the able but undeveloped requests case it. See showing ment’s of minimum contacts falls Edmond v. United States Postal Serv. far discovery “unnecessary so short that is (D.C.Cir. Counsel, 415, Gen. 949 F.2d 425 (or, useful) least, unlikely is to be in 1991) (“As matter, a general discovery un regard establishing juris the essential der the Federal Rules of Civil Procedure Techs., Dynamic dictional facts.” Image freely permitted, should be and this is no (1st States, 34, Inc. v. 221 United 38 discovery less true when is directed to .2000). Cir personal jurisdiction.”); Butcher’s Union approach Inv., Inc.,

Our discovery Local No. v. SDC 788 F.2d (9th Cir.1986) 535, originates Surpitski Hughes-Keen (“Discovery v. should (1st 254, an Corp., 362 F.2d 255-56 ordinarily granted Cir. be pertinent where 1966). case, In that we held that bearing question jurisdic facts on the of district court should have allowed discov tion are controverted or where a more ery before ruling on a motion to satisfactory showing dismiss of the facts is neces (internal personal jurisdiction omitted)); lack of sary.” quotation where the marks plaintiff “had at good headway, Compagnie least made des Bauxites de Guinee v. d’Assurances, and position shown his not to be Atlantique frivolous.” L’Union S.A. Rather, government argues 11. The "timely” that our admoni- dard. That is not so. II, tion in Swiss "properly supported” language 191 F.3d at "[a] reflects timely supported properly request jur- plaintiff our statements elsewhere that a must See, discovery isdictional "diligent” discovery. e.g., merits solicitous atten- be to merit tion,” Condo., further softens the "colorable” stan- Sunview 116 F.3d at 964. (3d Cir.1983) (“Where having requisite jur- 723 F.2d failed to discover the frivolous, plaintiffs claim clearly is not isdictional facts earlier. Id. at 1248. ordinarily the district court should allow Here, the district court based its discre- discovery in order to aid tionary discovery denial of on an error of burden.”); plaintiff discharging recognize import law—its failure to of (5th Wyatt Kaplan, v. 686 F.2d fully Calder and the need to evaluate more Cir.1982) (“In case, an appropriate we will government’s case for not hesitate to reverse a for lack dismissal v. Pepsi See Ruiz-Troche Cola Puerto of personal jurisdiction, of ground on the Co., Bottling Rico 161 F.3d improperly denied discov- Cir.1998) (mistaken application of law con- ery.”); see 5A Alan Wright also Charles & discretion); stitutes abuse United States Miller, Arthur R. Federal Practice and (1st Cir.1998) Snyder, (2d 1990) § Procedure 1351 at 256-59 ed. (per se abuse of discretion occurs when (“In cases, ... particularly complex may law). district court commits error of As- abeyance be desirable to hold in a decision properly, government’s sessed case is personal on a motion to for lack of dismiss explained, colorable. As I have Calder jurisdiction. Doing will par- so enable the held that the in-forum effects of intention- employ discovery jurisdic- ties to on the ally significant juris- tortious conduct are a issue, might tional which lead to a more dictional contact right. their own judgment solely accurate than one made Therefore, when through prism viewed affidavits.”). sum, on the In basis “[n]u- endorsed, effects test that Calder merous cases have right sustained the government’s tort claims are related to plaintiffs discovery to conduct before the SAB’s contacts with the forum. It un- personal district court dismisses for lack of der the purposeful prong— availment jurisdiction.” Toys Renner v. Lanard which the district court never even consid- Ltd., (3d Cir.1994).12 ered —that government’s showing falls light right, of this several appellate Antigua short. Because legal was the si- found, courts have Surpitski, as we did in tus of the injury, it is not denying district courts erred in dis immediately expressly obvious that SAB covery in plaintiffs cases which did not activity aimed its tortious at the United allege sufficient facts to make a prima Thus, States as a forum. in order to es- jurisdiction. facie personal case for In case, tablish a prima facie the Renner, example, for the Third Circuit rely solely cannot on the in-forum effects concluded discovery should have been actions; of SAB’s it must demonstrate the granted “ambigu where record was existence of other contacts between SAB “incomplete.” ous” and Id. at 283. In and the forum so that the exercise of Edmond, the lower court’s decision to fundamentally over SAB is deny discovery was error because the fair. plaintiffs’ allegations were “far from con government points The out that its abili- clusory.” 949 F.2d at 425. Skidmore Labs., Inc., (5th ty to show more contacts between Syntex SAB Cir.1976), States, and the United discovery gen- the court said that under either specific theory jurisdic- should have eral or personal been allowed because the tion, plaintiffs attorney was not at fault hampered by has been the bank’s Co., But see v. Nissan Motor district court had over Nissan Ja- Jazini 12. (2d Cir.1998) ("Since pan, denying the Jazin- the district court did not err in issue.”). prima is did discovery not establish a facie case that the on that privately Antigua’s held status reversed the in light dismissal of the new Accordingly, banking secrecy laws. facts through discovery. learned We ex- government’s failure to establish the nec- plained:

essary necessarily contacts does not indi- case, Under the facts of this the incom- cate that those contacts do not exist. plete nature of the record prevented any Rather, may simply gov- it mean that the sort of conclusive determination on the ernment has not been able to learn of personal jurisdiction issue at the time discovery. them without the benefit of 163 Pleasant St. I was handed down. example, For the business contacts be- deficiency which in- tween and American companies sug- SAB holding formed the in our previous opin- gest may there be more such contacts ion did not stem from either a settled government might that the be able to dis- predicate factual or legally insufficient if cover it had access to the bank’s records. allegations, but from perceived voids Similarly, discovery, with the benefit of evidentiary landscape. government might find out that SAB sent Id. at Noting that before Pleasant St. phone Fitzgerald letters or made calls to I, discovery “no filling directed at those States, repre- the United or even sent id., place,” voids took we continued: Indeed, sentatives to meet with him here. if, it, on the record before the district government’s investigator already has court had personal jurisdic- decided the phone found indicating records that Her- adversely plaintiffs tion issue without rington placed during calls to Boston affording least them opportunity period in Fitzgerald setting up which to ... request discovery, we almost cer- his If SAB accounts. had tainly would have declined to affirm the records, might access to the bank’s it be judgment district court’s and held the able to show that Fitzgerald received those ruling to be an abuse of the court’s calls, thereby strengthening both the relat- discretion. edness and purposeful availment elements case, Id. at 48 n. 18. In this specific jurisdiction. of its case for litigation, “incomplete Pleasant St. na- precedent Our in Pleasant II in St. ture of the record” rather than a “settled structive here. The proceedings that led predicate legally factual or insufficient al- to that began decision when the district legations” govern- is the reason that the injunction court entered an and a contempt prima ment cannot make out a facie case against corporation. order a Scottish See Id. at 47. During pendency 987 F.2d at 42. SAB launches two additional attacks on corporation’s appeal, plaintiff pro it contention that is enti discovery, ceeded with but because of the First, discovery. argues tled to timing filings, the discovered mate in extending care a court must show part rial was not of the record appeal. authority foreign weighs its over nationals injunction Id. We thus vacated the and against allowing government take to contempt personal juris order for lack of circuits, discovery. Two have taken this I diction Pleasant St. unaware of the in declining consideration into account to jurisdictional plaintiff contacts had reverse lower court decisions to disallow Elec., discovered. United Radio & Mach. States, discovery. and See Cent. S.E. S.W. Corp., Workers 163 Pleasant St. (1st Cir.1992). remand, Express Areas Pension Fund v. Reimer F.2d 1080 On Cir.2000) (7th F.3d, 934, Corp., World granted district court the defendant’s mo (“[ burdensome, I]mposing tion to such wide- plaintiffs appealed dismiss. The time, a second and in Pleasant II ranging discovery against St. we defendants from 853(m). § argues at a foreign appropriate nation is not U.S.C. SAB trying investigation pursuant the district court is to undertaken to the stage where any power Discovery equivalent determine whether it has over Asset is the Order defendants.”); However, Jazini v. Nissan Motor discovery.13 only that Order (2d Cir.1998) Co., discovery 185-86 authorized on the location of (declining plaintiff to allow who made “con- It not a forfeitable assets. broad dis- clusory jurisdictional non-fact-specific covery Discovery alle- tool. The Asset Order gations” discovery give government to obtain because to do did not access to records, so the federal courts to require appear “would SAB’s which would to be jurisdictional discovery conduct substantial and promising most obvious source of foreign practice over corporations information for the in-forum contacts the —a they engaged”). which have not hitherto government gov- needs to uncover. The investigation ernment’s to point this has Weighing sovereignty concerns when hampered by inability been explore yet has not shown that records, these an obstacle that court-or- proper exercise of is is indeed (or not) discovery may may dered be able urged a delicate matter. We have courts to remove.14 greater even care exer- “exercise before cising personal foreign over argues SAB also Noonan, nationals.” But 93. ample opportunity during had the course our caution not extend far does so as to investigations prosecu- of its in its earlier this, prevent discovery in a such as case Fitzgerald present tion of and in the case discovery only where filling means of to obtain information relevant to SAB’s missing jurisdictional in the of a pieces Herrington, points forum contacts. SAB showing is more than “colorable.” out, length by was interviewed at United law States enforcement officials 1991 on argues gov- The bank further that the Man, again by govern- the Isle of and “diligent” plaintiff, ernment has not been a investigator ment after the initiation of Surpitski and later cases define the proceedings against Fitzgerald, SAB. who term, (1) it adequately because failed to signed had a plea cooperation agree- pursue the contacts that was authorized government, presumably ment with the investigate pursuant to an Asset Discov- provide was available to information rele- ery Order issued in the criminal case vant (2) to the issues. Given its against Fitzgerald; adequate make use information, contends, access to such SAB of its with Fitzgerald interviews and Her- (or (3) government already has should rington; present the district court have) any discovered why discovery with a contacts between rationale would further SAB and the United States. its case. That Discovery argument significantly is weakened Asset Order was issued by the discovery Fitzgerald shortly

under statutes that authorize fact that died “to facilitate the identification and location after the forfeiture order was entered in property leading forfeited.” 1994—before the events to the declared 13. SAB makes much of the district court’s In its November letter to the statement that the was not enti- government, SAB said that the relevant rec- III, any discovery.” tled "to further Swiss destroyed gov- ords were in a hurricane. The F.Supp.2d at I 225. assume that the presumably ernment would test this assertion simply court’s use of the word "further” re- pursue permitted if it were to government's investigation pursu- fers to the discovery. Discovery ant to the Asset Order. Indeed, present controversy relationship”). with the bank—and cial the govern- hardly govern- attempt investigate only could have aided the ment’s to thus under- relationship to scores that its with the attempts ment its uncover SAJB’s bank is an artifact of Herrington’s forum contacts. 1991 inter- the forfeiture order. While Fitzgerald had business predated dealings view likewise the forfeiture order SAB, and stranger so was not a to comply. Accordingly, and SAB’s failure to bank, the government had no such government press ongoing had no reason to relationship. him regarding his or SAB’s contacts with Rather,

the United States.15 the interview Finally, argues that govern- SAB focused on facts relevant to the criminal ment did not meet its burden of explaining charges conspiracy money of and launder- to the discovery district court the sought Fitz- ing brought against that later were and its value. We have said that plaintiffs A gerald and several other individuals. “explain! must ... discovery, ] how if al- government investigator did conduct a lowed, jurisdic- would bear on the narrow telephone Herrington brief interview with Dynamic Image, tional issue.” government after the filed its com- In opposing at 39. SAB’s motion to dis- plaint present ap- action. But the miss, government articulated the theo- parent purpose of the interview was to general ries of specific and demonstrating gather information IMB’s it trying prove requested that was to and SAB, of not to determine the ex- control discovery “any regarding information any tent of the latter’s forum contacts. In existence, nature scope and of SAB event, that interview does not alter the contacts with the United States and Unit- government’s “stranger” status as a to ed persons.” majority States As the meaning Surpitski, SAB within the out, points only appeal govern- did the See, progeny. e.g., F.2d at and its fully explain types ment of contacts it Corp., F.2d at 1086 (noting Whittaker hopes majority to discover. The is correct jurisdictional discovery appropriate disregard specifics presented to not below. where, alia, party view, however, inter is “somewhat my government ade- adversary”); unfamiliar with his Am. Ex- quately explained to the district court the Int’l, press Mendez-Capellan, Inc. v. 889 purpose request discovery, of its for (1st Cir.1989) (finding description its it hoped contacts find, bare, parties stranger[s]” were not “total under diligence while meets the stan- all, Surpitski they “long where had a commer- dard.16 After is obvious interview, During Herrington government 16. SAB also faults the for not renewing discovery its for before the questioned motion about certain conversations with following filed its bank motion dismiss Fitzgerald explained Fitzger- in which he how timing The remand. mo- anticipated deposits ald's would be handled proper. tion was The Federal of Civil Rules by Herrington SAB. indicated that all those provide opposing party Procedure do not an place Antigua. conversations took When explicit right discovery an in the motion to face,” “they whether were asked all face to he context, government dismiss could answered, "I, er, my knowledge, in the best of explain why best to the court it merited dis- Fitzgerald anywhere I never met Mr. else but response arguments covery in to the in SAB’s Antigua.” interviewer did government pre- motion to dismiss. The Herrington not ask whether he ever had con- discovery junc- request served for at each (for Fitzgerald by example tacted other means case, plaintiffs ture of this in contrast to telephone). There mail or was no cause other cases in which we have affirmed denials to seek such details in the Dynamic requests discovery. See Im- investigation. context of its 1991 38; Condo., age, Sunview Boit, 964; F.3d at 967 F.2d at 681. physical, vacate the dismissal of the case government seeks evidence of also lacking mail that are telephone, or contacts court against IMB. The district deter- in the current record. mined that the had failed ade- quately plead ego liability against alter short, diligent In was a IMB, and that it had not a established a claim. plaintiff with colorable See Sur jurisdiction. personal sufficient basis for 255; Condo., pitski, 362 F.2d at Sunview any ruling II that We said Swiss If given opportunity 116 F.3d at 965. ego liability be- “premature,” alter was discovery, may for well be appropriate prima showing jurisdictional question able to make out a facie should be cause did specific The district court reaching resolved before the merits of the however, that be recognize possibility, not (citing case. 191 F.3d at 46 Steel Co. v. cause it to treat the in-forum ef refused Env’t, 83, Citizens Better 523 U.S. allegedly fects of SAB’s tortious activities 140 L.Ed.2d 210 result, jurisdictional as a contact. As a (1998); Co., Ruhrgas v. Marathon AG Oil jurisdictional anal specific court ended its 143 L.Ed.2d 526 U.S. element, ysis with the and relatedness (1999)). The factors discussed summarily denied the re weigh Swiss II continue to in favor of that quest discovery. Based as it was on a approach here. Colder, application mistaken that denial majority juris- explains, personal As the “plainly wrong,” was v. Hilton Crocker Barb., Ltd., contingent Int’l 976 F.2d diction over IMB is on the gov- Cir.1992).17 Ruiz-Troche, See ability prima ernment’s to make out a facie Moreover, gov 86. the denial caused the case for over SAB. district Crocker, prejudice.” ernment “substantial question court ruled on the latter without discovery, 976 F.2d at 801. Without having discovery against allowed SAB to government’s case ends. proceed. I would remand the that case so discovery place. such could take If the III. government, jurisdic- with the benefit of discovery, tional were able to establish a I Because conclude that the district SAB, prima facie case of over jurisdic- in refusing erred to allow the district court would then have to reas- discovery respect gov- tional SAB, against I ernment’s claims would sess the status of IMB and Contrary majority’s suggestion, to the we noted the court’s broad district discretion proposition Crocker does not stand for the considering questions, explained such " court retains "broad district discre- 'only that its decision would be overturned discovery required” tion to decide whether upon showing injustice, a clear of manifest plaintiff diligent even been has has is, if discovery where the lower court’s personal jurisdic- made a colorable claim for plainly wrong order and resulted in sub- Crocker, ” affirming tion. 976 F.2d at 801. In prejudice aggrieved party.' stantial to the discovery the district court’s denial of Fenton, (quoting Santiago Id. Crocker, we did not so much as hint drat the (1st Cir.1989) (discussing standard for colorable, plaintiffs' they case was or that had pre-trial, non-jurisdictional, discovery)). Un- Instead, diligent. simply been we observed precedents dating Surpitski, our der back to futile, discovery have would been as the "plainly district court's order would be plaintiffs sought information the would not if, wrong” any contrary, without reason to the have established did busi- defendant jurisdictional discovery diligent it denied to a Massachusetts, required by ness in awith colorable claim. long doing, state’s statute. See id. so arm any ego ruling, its alter well as discov- IMB.

ery relating issues LARSON, Plaintiff,

Duane W.

Appellant, STATES, Defendant, Appellee.

UNITED

No. 00-2455. Appeals,

United States Court of

First Circuit. April

Submitted 2001.

Decided Dec. pro

Duane W. Larson on brief se. Stern, Donald K. United States Attor- ney, Shelbey Hay Wright D. and Jennifer Zacks, Attorneys, on brief Assistant U.S. appellee.

Case Details

Case Name: United States v. Swiss American Bank, Ltd.

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 27, 2001

Citation: 274 F.3d 610

Docket Number: 00-2502

Court Abbreviation: 1st Cir.